When
an Alleged Murderer Dies in a Plane Crash -- A Wrongful-Death
Conundrum

Stephen P. Dresch

Delmarie
Walker Dies in Everglades Plane Crash

When
ValuJet Flight 592, en route from Miami to Atlanta, crashed in the
Florida Everglades on May 11, 1996, 109 people died. Among them was
38-year-old Delmarie Walker, mother of two teen-aged children and
wife of a disabled Pennsylvania state policeman.

As
efforts to recover the bodies continued, Delmarie Walkers
14-year-old son Russell, from Erie, Pennsylvania, waited at an
airport hotel in Miami. It's real important to me maybe to see
her, see some of her clothes, Russell Walker was quoted in the
Atlanta Journal Constitution on May 15. However, searchers failed to
recover Delmaries body; a memorial service was held for her at
a cemetery in Erie.

At
a November 1996 National Transportation Safety Board hearing on the
cause of the crash, Walkers 18-year old daughter Tiffany, a
student at Clark Atlanta University, told the Journal Constitutions
Mike Williams: Being here has just added more burden to my
grief. From the top level down, it was incompetence. They are
murderers. They should be prosecuted to the fullest extent of the
law.

At
the time of her death Walker was employed as a waitress in Atlanta.
However, prior to her marriage to Gerald Walker, Jr., she had
completed three years at Mercyhurst College in Pennsylvania. Because,
relatives told the Journal Constitution, she wanted more from
life than being a waitress, she had gone to Miami for a job
interview, placing her on the ill-fated ValuJet flight.

Even
from these sparse facts it can be presumed that ValuJet, its
maintenance contractor and their insurers confronted a significant
prospective liability as a result of Walkers allegedly wrongful
death. Not surprisingly, Walkers estate sued.

Police
Conclude That Walker Murdered Catherine Holmes

In
February 1997, well before the ValuJet crash suits could be settled
or go to trail, the College Park, Georgia, police announced that they
were closing their investigation into the March 25, 1996, murder of
48-year-old Catherine Holmes. Even though we can't charge
[Delmarie Walker], we feel the evidence shows she was the suspect who
committed this crime, the lead investigator told the Journal
Constitution.

Holmes
had choked to death on some object, possibly a sock, which had been
forced into her throat. In the course of an apparent struggle she had
received more than twenty stab wounds. Hogtied with a pillowcase
covering her head, Holmes died cluching tufts of her assailants
hair.

Catherine
Holmes and Delmarie Walker had been close friends for several years.
When police interviewed Walker two days after Holmes murder,
patches of hair were missing from Walkers scalp, and cuts were
observed on her hands and forearms. Walker agreed to be fingerprinted
and to give the police samples of her hair, but she refused to give
blood for a DNA comparison with blood spatters found in Holmes
apartment. At the time investigators did not believe that they had
sufficient evidence to obtain a court order for a blood sample.

Then
Walker died in the ValuJet crash in the Everglades. Eight months
later (after delays attributed to the Olympic bombing) the Georgia
Bureau of Investigations crime lab confirmed that Walkers
hair matched the hair found in Holmes grasp and that Walkers
fingerprints were found in Holmes apartment. Evidence that
Holmes had previously written checks to Walker and that Holmes was
known to have received $1,800 from her mother shortly before her
death was apparently sufficient to convince police that Walker had
murdered Holmes in a dispute over money.

However,
because Walkers body was never recovered from the Everglades,
it was not possible to verify a match between Walkers DNA and
the blood spatter at the murder scene. Thus, the evidence on which
the police based their conclusion that Walker was Holmes
murderer and their consequent decision to close the investigation was
largely circumstantial and arguably less than conclusive.

These
facts might lead an inveterate conspiracy theorist to bizarre
speculations: Might the ValuJet crash actually have been an act of
revenge directed at Walker for her murder of Holmes? Could the true
murderer have framed Walker, and perhaps even have
engineered the crash to prevent Walker from establishing her
innocence and possibly exposing the murderer? Since her remains were
never found, was Walker even on the fated flight? Might Walker have
engineered the crash to cover her escape from justice?

More
interesting, however, is the question of the relevance of the police
conclusion that Walker had murdered Holmes for the Walker estates
wrongful-death lawsuit, and specifically for the economic and
noneconomic damages claimed in that suit.

Holmes
Murder, Walkers Death and the Walker Estates
Wrongful-Death Suit

Clearly,
if Walker had not been killed in the ValuJet crash, her conviction
for Holmes murder would have significantly affected her future
prospects and hence the claims of her estates wrongful-death
suit. Instead of continuing life as a waitress in Atlanta or, more
speculatively, of pursuing a more lucrative career in Miami, Walker
would have faced, if not the death penalty, at least a long period of
incarceration, possibly for life. While Walkers husband and
children had remained in Pennsylvania when she had decamped to
Atlanta several years earlier, her conviction of murder would have
rendered moot any question of loss of consortium, companionship,
maternal care, etc.

In
fact, considering the financial burden of Walkers defense
against the charge of Holmes murder and the psychological
trauma which Walkers prosecution and conviction would have
inflicted on her husband, children, mother, mother-in-law and other
relatives, one might well conclude that Walkers survivors
derived a net benefit from her untimely death in the Everglades.

But,
how could the conclusion of the College Park police, that Walker had
murdered Holmes, be used in the defense of ValuJet and its
codefendants against the Walker estates wrongful death suit? At
the time of her death Walker had not even been charged with Holmes
death, much less convicted.

For
a jury in the Walker estates wrongful-death suit the standard
of proof would be the civil standard, a preponderance of the
evidence. In contrast, had Walker been prosecuted for the
murder of Holmes, the jurys standard of proof would have been
the criminal standard, beyond a reasonable doubt, reached
subject to the presumption of innocence.

Assume
that the jury would have found the ValuJet defendants liable for the
death of Walker. How could the ValuJet defense frame for the jury,
and how might the court ultimately charge the jury concerning, the
consequences for the Walker estates damages claim of the
postmortem police conclusion that Walker had murdered Holmes?

Because
a damages claim is a statistical expectation, it can be argued that
the jury should condition the expectation of damages on its
assessment of the probabilities of findings of guilt or innocence in
a hypothetical criminal trial of Walker for the murder of Holmes.
Thus, the jury would determine (a) the probability pg that
a criminal jury would have found Walker guilty beyond a reasonable
doubt of Holmes murder (had there been a trial), (b) damages Dg
attributable to Walkers death on the assumption that she would
have been found guilty of Holmes muder, and (c) damages Dng
attributable to Walkers death on the assumption that she would
have been found not guilty of Holmes murder. Then, having found
the ValuJet defendants to be liable for Walkers death, the jury
would award damages equal to A1 = pgDg
+ (1-pg)Dng.

If
it believed that it could convince the civil jury that a hypothetical
criminal jury would be more likely to find Walker guilty than not
guilty, then the ValuJet defense might attempt to exploit the civil
jurys lower prependerance-of-the-evidence standard and force
the jury to assume either criminal guilt or innocence in the
determination of the damages award. Because a probability greater
than 0.5 represents a preponderance of the evidence, if the civil
jurys estimate of the probability of criminal guilt, pg,
were greater than 0.5, then it would award damages of A2 =
Dg. Conversely, if pg were less than or equal
to 0.5, then the jury would award damages of A2 = Dng.
If pg > (1- pg), i.e., if pg >
0.5, then this approach will produce a damages award which is lower
than the first, probabalistic, award.

To
this the estates (plaintiffs) attorneys might counter
that the civil jurys assessment of the probability that a
criminal jury would have found Walker guilty beyond a reasonable
doubt should itself conform to the more stringent
beyond-a-reasonable-doubt standard. If it were stipulated that guilt
beyond a reasonable meant a probability of guilt greater
than 0.95 (a commonly accepted standard of statistical significance),
then the plaintiff would argue that the jury should assume guilt and
award damages of A3 = Dg
only if it found pg ³
0.95 and that it should assume innocence and award damages of A3
= Dng if pg
< 0.95.

Because the issue of a
possible criminal conviction would be raised by a civil defendant
only if this would be likely to reduce damages, it can be assumed
that Dng is significantly
greater than Dg.
Also, because the civil defendants claims could be taken
seriously only if there were significant evidence of criminal guilt,
it can be assumed that pg
is greater than 0.5. Thus, in general it can be anticipated that A2
[= Dg] < A1 [= pgDg +
(1-pg)Dng] < A3 [= Dng].

Because
it appears that no court has ever confronted this issue, it is
unclear which of the three approaches a court would embrace on first
impression. The first is most consistent with the expectational
interpretation of civil damages. The second and third take polar
approaches to the distinction between civil and criminal standards of
proof.

However,
it is quite conceivable that the court would sidestep the issue
entirely. Because Delmarie Walker died before she could be criminally
charged and tried, all three approaches to the determination of
damages require that the evidence of criminal guilt be developed by
the ValuJet defense in the course of the civil damages trial.
Effectively, this requires that a criminal trial be embedded within
the civil trial, with the attorneys for the civil defendant (ValuJet)
acting as the criminal prosecution and the attorneys for the civil
plaintiff (the estate) acting as the criminal defense.

It
is likely that the civil court would rule this embedded conduct of a
criminal trial to be impermissible on constitutional grounds. Trial
in absentia is generally prohibited on Sixth and Fourteenth Amendment
grounds, and the only limited exceptions relate to the voluntary
absence of the defendant; see, e.g., Smith v. Mann, 73 F.3d 73,
1999.C02.42161 (1999).1
Clearly, if Walker was indeed on the ValuJet flight, then, unless
she engineered the crash as a means of disguised suicide, she did not
voluntarily absent herself from a possible future trial
for a crime for which she had not even been indicted at the time of
her death.

In
the case of the Walker estates suit against the ValuJet
defendants the court never had an opportunity to address this issue.
Deficiencies of the police investigation of Holmes murder,
especially their failure to obtain potentially important DNA
evidence, and the impossibility of correcting these deficiencies
because Walkers body was never recovered from the Everglades
together led the ValuJet defense to seek a settlement of the estates
suit. The estate was probably also eager to settle in light of the
continuing adverse publicity which would have surrounded a trial,
with consequent emotional trauma for Walkers survivors,
especially her children.

Thus,
the interesting legal questions potentially raised by the Walker
matter are left to some future court.

As
an aside, while Walkers death prevented her criminal
prosecution for Holmes murder, Holmes survivors might
well have a strong civil wrongful-death case against the Walker
estate. Without the ValuJet settlement, Walkers estate would
have been devoid of assets. With that settlement Holmes
survivors might well be able to secure substantial compensation.

Stephen P.
Dresch, Ph.D.

1In
a line of cases over the years involving review of federal
convictions, we have held that a court cannot commence a trialinabsentia unless the defendant
knowingly and voluntarily waives his right to be present, and the
public interest in proceeding clearly outweighs the interest of the
voluntarily absent defendant in attending his trial.
See, e.g., United States v. Tortora, 464 F.2d 1202, 1209-10 (2d Cir.
1972); United States v. Fontanez, 878 F.2d 33, 36 (2d Cir. 1989);
United States v. Nichols, 56 F.3d 403, 416-17 (2d Cir. 1995).
However, only the first element--a knowing and voluntary waiver--is
required by the Constitution; the second element--a balance of
interests weighing in favor of trial--simply governs
the trial court's exercise of its discretion to
proceed with a trialinabsentia
that is constitutionally permissible. See, e.g., Tortora, 464 F.2d
at 1209-10. See also Taylor v. United States, 414 U.S. 17 (1973)
(per curiam) (discussing knowing and voluntary waiver of right to be
present at trial as sufficient for constitutionally
valid trialinabsentia);
Clark v. Scott, 70 F.3d 386, 389-90 (5th Cir. 1995) (holding that
balancing test not constitutionally required).